The frantic race to then-Attorney General John Ashcroft’s bedside on March 10, 2004, sounds more Hollywood than history: Acting AG James Comey’s foot-to-the-floor drive to head off then-White House counsel Alberto Gonzales and Chief of Staff Andrew Card; FBI Director Robert Mueller’s startling imperative to his agents to defy any attempt by Gonzo and Card to throw Comey out; the sedated and badly ailing Ashcroft rousing himself from his sickbed to defend the Constitution; the resignation threats by Comey and Mueller. As Washington lore, the episode joins Richard Nixon’s Saturday Night Massacre and Thaddeus Stevens’s being carried on a stretcher to vote in the impeachment trial of Andrew Johnson. And behind all this, the President pushing a wiretap program so blatantly illegal that his own top Justice appointees were threatening to resign.
The histrionics of that night, recounted by Comey to the Senate Judiciary Committee after three years, further erode Alberto Gonzales’s already fatally compromised capacity to run the Justice Department. And they expose an internal Administration conflict between hyper-politicized operatives like Card, Gonzales and Karl Rove and Justice professionals like Comey–Bush appointees who nonetheless understood that their oath was to the Constitution. But there is also a risk that the drama of this good guys/bad guys confrontation–with Comey protecting his boss the way Michael Corleone took it on the chin for the Don at that lonely, dark hospital in The Godfather–is obscuring the real story: just how many ways the Bush Administration was finding to break the law, and just how high the chain of complicity ran:
§ According to Comey’s testimony, for two years the White House had endorsed still unspecified secret wiretaps by the National Security Agency without a warrant or authorization from the Foreign Intelligence Surveillance Court. In other words, for two years the NSA and telephone companies had been committing a federal crime with the full endorsement of the Oval Office.
§ In spring 2004, when Ashcroft, Comey and every other responsible official in the Justice Department had reviewed the program and declared that the taps blatantly violated the surveillance law, Card, Gonzales and Bush himself all indicated their intention to go forward anyhow. In plain English, that is a conspiracy.
§ If Comey’s memory is accurate, the President himself called the wife of the critically ill Ashcroft and asked her to let Gonzales and Card visit his bedside. When they arrived they tried to persuade the sedated Ashcroft to approve the illegal taps. But Ashcroft had already signed over his AG authority to Comey, who consequently carried the title Acting Attorney General. As Georgetown University law professor Marty Lederman has noted, this means that Bush, Gonzo and Card were seeking the signature of an Ashcroft “who was not only incapacitated but not even acting in an official capacity.” What was the point? Writing in the blog of Yale law professor Jack Balkin, Lederman, a former adviser to the Ashcroft Justice Department’s Office of Legal Counsel, suggests a chilling motive: “Obviously, they did so in order that they could present a
certification, of someone who was not at the time acting as AG, to the NSA and/or to the telecom companies.” That is how determined the President was to continue an illegal program. Add fraud to the charge sheet.
§ As recently as February 2006, Gonzales testified in a sworn statement to Congress that there was no substantive dissent within the Justice Department over the warrantless wiretap program. This is not a casual misrepresentation: Had Gonzo told the truth, it would have moved Congress to ask questions. Add perjury to the charge sheet.
And the lies continue. When NBC reporter Kelly O’Donnell asked Bush at a press conference whether he ordered Card and Gonzales to the hospital that night, the President changed the subject: “I’m not going to talk about it. It’s a very sensitive program.” Which program, Mr. President–the wiretaps you had been told were illegal, or the program of strong-arming sedated and sick officials who don’t see things your way?
It must be said that John Ashcroft’s genuine courage when confronted in the hospital by Card and Gonzales does not absolve him of responsibility for creating the conditions in which illegality flourished. As Bush’s first Attorney General, he promoted the climate of secrecy that removed essential checks and balances on the Administration, indulging the Oval Office’s contention–backed up by John Yoo’s memos on the Geneva Conventions and in Dick Cheney’s speeches–that the law is only what the President says it is. And while Comey’s and Mueller’s resignation threats sounded dramatic, there was no Saturday Night Massacre; Ashcroft, Comey and Mueller did not resign, instead settling on a compromise permitting the illegal program to go ahead with modest modification. Like their foreign-policy equivalents Colin Powell and George Tenet, these Justice officials persisted in the delusion that an Administration addicted to executive unaccountability and secrecy would be better off with themselves in it.
The focus on Gonzales’s responsibility in the Ashcroft hospital affair should not be a distraction from the need for an aggressive Congressional investigation of the NSA wiretap program itself–as it existed before the sickbed saga, and as it continues to this day. At the Judiciary Committee hearing senators were understandably reluctant to push Comey on the point, given his cooperation and spectacular revelations. But national security classification and executive privilege do not apply to the grotesquely illegal. It is time for subpoenas and public disclosure.
As we go to press, Gonzales hangs by a thread, with more and more Republicans joining Democrats in calling for his resignation. And a no-confidence vote is pending. The ongoing tale of politically motivated US Attorney firings deepens every week; now it appears that as many as twenty-six of the nation’s federal prosecutors may have been reviewed on the grounds of insufficient enthusiasm for the White House agenda. That Gonzales systematically lied to Congress about his knowledge and role in the firings isn’t even a question.
What Comey’s account makes so devastatingly clear, though, is that Gonzo’s lies are just the signature of far deeper rot. Combining the US Attorney scandal and the Comey disclosures, Gonzales stands revealed as an unambiguous conspirator against the Constitution. As does his boss. The President’s arrogant dismissal of Comey’s shocking testimony implies that, to Bush, even public gestures of conscience are to be treated as state secrets.